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Senate Bill 469 shouldn't get Gov. Jindal's signature: Editorial

Delacroix.JPG

There was a time when Delacroix was a thriving community of 700 fishers and trappers, surrounded by forests of oak, maple and sycamore trees that provided protection against storm surges moving west toward Chalmette. By the time this photo was taken in June 2010, barely a sliver remained, as the marsh continued to erode, in part due to the effects of nearby oil and gas development activities.
(Ted Jackson, NOLA.com | The Times-Picayune archives)

Gov. Bobby Jindal set out this spring to derail the Southeast Louisiana Flood Protection Authority-East lawsuit against 97 oil and gas companies for their role in the erosion of the state's coastline. It wasn't as easy as he might have hoped, but he may have done it. The final version of Senate Bill 469 gives the companies explicit permission to get out of the lawsuit. The question is how fast they will race to court to file those motions -- and whether a judge will agree to dismiss the case.

That shouldn't be allowed to happen, though. The bill should be vetoed, especially given the new analysis released Saturday by legal scholars who argue the legislation could undermine ongoing lawsuits against BP in the Deepwater Horizon oil spill and any future such accidents. That prospect ought to make even Gov. Jindal rethink SB 469.

If he doesn't, Attorney General Buddy Caldwell should look for a way to salvage the authority's lawsuit and minimize the damage of SB 469. Mr. Caldwell is the people's lawyer and should look out for their well-being. Having the Legislature pre-empt an ongoing lawsuit and summarily let an industry off the hook for decades of damage to our coast is not in the best interest of the people of Louisiana.

The House amended SB 469 to make its provisions retroactive, and the Senate concurred Friday (May 30). Making something illegal after the fact seems like an invitation for a court challenge.

SB 469 prohibits not only the two Southeast Louisiana flood protection authorities, but parish governments and other agencies from suing for negligence, strict liability or other causes of action for damage to levees or coastal lands, according to an analysis by the Bureau of Governmental Research.

Nor could they sue for increased cost of operation and maintenance of flood control structures or construction costs because of coastal erosion caused by the industry.

If the lawsuit were dismissed "with prejudice," it couldn't be filed again.

The legislation could "very well permanently deprive the residents of greater New Orleans and the rest of coastal Louisiana of significant claims against the oil and gas industry and others," BGR said last week.

SB 469 left in place the right of parish governments to file so-called legacy lawsuits against oil and gas companies for permit violations, but those suits are much narrower in scope and would involve much smaller amounts of money. It is a drastic step to take away such broad rights from parish governments, which are charged with protecting the best interests of their residents.

The forces behind the bill, including Gov. Jindal, claim that the flood protection authority's lawsuit was a reckless decision. They want Louisianians to believe that SB 469 is a reform bill to curb lawsuit abuse. They say the legislation is simply an effort to reinforce the state's lead role in coastal restoration.

That isn't true.

The flood protection authority, which is made up of engineers, hydrologists and other coastal experts, based its lawsuit on in-depth research and followed all the rules in filing it. Mr. Caldwell signed off on the authority's request to hire a law firm for the lawsuit, and a Baton Rouge judge ruled in March that he acted properly.

The lawsuit ought to be allowed to unfold in the court system. A judge can decide whether it has merit. That is not the Legislature's job. Nor is it the governor's.

The oil and gas industry has acknowledged that its activities have contributed to coastal erosion in Louisiana. Yet SB 469 would give the companies a pass.

That makes no sense.

The authority's flood protection system "guards millions of people and billions of dollars' worth of property in south Louisiana from destructive floodwaters," the lawsuit says. Those residents and the levees and pumps built to protect them are threatened by the wetlands loss that was created in part by oil and gas pipelines.

The two New Orleans area flood protection authorities will have to spend tens of millions of dollars to maintain the $10 billion system the Army Corps of Engineers built post-Katrina. The state's master plan to protect and rebuild the coast will cost at least $50 billion -- and there aren't nearly enough tax dollars on the horizon to cover it.

If the oil and gas industry helped cause the problem -- and that isn't in dispute -- it's fair to file a suit asking companies to help pay to fix the damage. Whether the suit prevails should be up to the legal system.

Believing the lawsuit should continue isn't about beating up on the oil and gas industry; it's about safeguarding our community from future storms.